Entries tagged with “opinions” from Harmfulerror
City of Reno v. Citizens v. Cold Springs - land use and municipal code - you're on your own as I have no interest in this.
Carrigan v. Commission of Ethics - The majority summarizes the issues and its holding: "In this appeal, we consider whether the Nevada Commission on Ethics' censure of an elected public officer for alleged voting violations under NRS 281A.420(2)(c) violates the First Amendment. NRS 281A.420(2)(c) sets forth one of the legal standards for determining whether a public officer must abstain from voting on a particular matter, based on the officer's "commitment in a private capacity to the interests of others." NRS 281A.420(8) defines this commitment to include four specific prohibited relationships between a public official and others and describes a fifth catchall definition as "[a]ny other commitment or relationship that is substantially similar to a commitment or relationship described in this subsection." The catchall definition of a prohibited relationship by a public official in NRS 281A.420(8)(e) confronts the First Amendment on appeal."
We first conclude that voting by public officers on public issues is protected speech under the First Amendment. Because NRS 281A.420(2)(c) directly involves the regulation of protected speech by a public officer in voting, we next determine that the definitional statute NRS 281A.420(8)(e) must be strictly scrutinized under a First Amendment overbreadth analysis. Applying a strict scrutiny standard, we conclude that NRS 281A.420(8)(e) is unconstitutionally overbroad in violation of the First Amendment, as it lacks necessary limitations to its regulations of protected speech. Consequently, the district court erred in its interpretation of NRS 281A.420(8)(e) and its application to NRS 281A.420(2)(c), and thus, we reverse the district court's order."
The relationship at issue was that of a personal friend and campaign manager to a city council member. Justice Parraguirre did not participate. Justice Pickering dissents. She summarizes her position: "Before today, no published decision has held that an elected local official engages in core political speech when he or she votes on an individual land use matter. Likewise, no published decision reviewing the ethical propriety of such a vote has subjected the applicable legislative prohibition against conflicts of interest to strict scrutiny or invalidated it on overbreadth grounds. Because I believe charting this course is both unprecedented and unwise, I respectfully dissent."
Boorman v. Nevada Mem'l Cremation Society - Certified question under NRAP 5 relating to the alleged handling of a deceased person's remains: "First, close family members who were aware of the death of a loved one and to whom mortuary services were being provided may assert an emotional distress claim for the negligent handling of a deceased person's remains against a mortuary. Those persons do not need to observe or have any sensory perception of the offensive conduct, and do not need to present evidence of any physical manifestation of emotional distress. Second, the only person who may assert an emotional distress claim against a county coroner for the negligent handling of a deceased person's remains is the person with the superior right to dispose of the decedent's body. That person does not need to observe or have any sensory perception of the offensive conduct, and does not need to present evidence of any physical manifestation of emotional distress. Third, a claim for conversion of a deceased human body or its parts does not exist under Nevada law."
Quinlan v. Camden USA - "Audrey Quinlan sued Camden USA, Inc. for damages after she tripped on a sidewalk in its apartment complex. She lost at trial and was ordered to pay Camden $41,976 in attorney fees and costs. The district court based its award on the offer of judgment Camden made under NRS 17.115 and NRCP 68, which Camden sent by facsimile. Although Quinlan's lawyer received the offer of judgment, he had not expressly consented to fax service as NRCP 5(b)(2)(D) requires. It was error to shift fees and costs based on Camden's offer of judgment because NRS 17.115, NRCP 5(a), and NRCP 68(a) all require an offer of judgment to be served in compliance with NRCP 5 and Camden's was not."
Ramirez v. State - "we conclude that the jury was not completely and accurately instructed as to the necessary elements of second-degree felony murder and that the improper instruction affected appellant Felicia Ramirez's substantial rights. Accordingly, we reverse the district court's judgment of conviction and remand this matter for a new trial." The jury instructions failed to include the immediate-and-direct-causal-relationship element of second degree felony murder. The Court finds plain error based upon the instruction, the State's failure to specify the felony under which it sought a second-degree felony murder conviction, and conflicting evidence as to who inflicted the victim's moral wounds.
Reno Newspapers v. Sheriff - The Court grants a writ of mandamus compelling a sheriff, under the Public Records Act, to provide records on the identity of those holding a concealed firearms permit and non-confidential information concerning post-permit records of investigation of a permit holder, or suspension or revocation of a permit holder's permit. The case involved a newspaper's request to obtain records concerning the Governor's concealed weapons permits.
Renown Health v. Vanderford - "In this appeal, we consider whether hospitals owe an absolute nondelegable duty to provide competent medical care to their emergency room patients through independent contractor doctors. Although the parties settled in this matter, appellant Renown Health, Inc., reserved its right to appeal the district court's interlocutory order granting partial summary judgment based on the imposition of a nondelegable duty. A portion of the settlement remains contingent upon this appeal. We conclude that no such absolute duty exists under Nevada law, nor are we at this time willing to judicially create one. Accordingly, we reverse the district court's grant of partial summary judgment insomuch as the district court concluded that hospitals have such a nondelegable duty. We hold that Renown may be liable for patient injuries under the ostensible agency doctrine that we previously recognized in Schlotfeldt v. Charter Hospital of Las Vegas, 112 Nev. 42, 910 P.2d 271 (1996)."
Strickland v. Waymire - "These consolidated appeals require us to interpret Article 2, Section 9 of the Nevada Constitution, which subjects every public officer in Nevada to recall by special election upon the filing of a qualifying recall petition signed by "not less than twenty-five percent (25%) of the number" of registered voters "who actually voted in the state or in the county, district, or municipality [that the officer] represents, at the election in which [the officer] was elected." Nev. Const. art. 2, § 9.
The question presented is whose signature counts toward the 25 percent needed to qualify a recall petition. Is it any registered voter, as the district court held? Or must the signatures come from those registered voters who in fact--"actually"--voted at the election in which the public officer was elected, as the Secretary of State and the Attorney General have concluded? Reasonable policy arguments exist on both sides. But Article 2, Section 9's text and relevant history convince us that the latter reading is more faithful to the provision's test and the evident understanding of the citizens who enacted it. We therefore reverse."
Bahena v. Goodyear Tire & Rubber Co. - "In this appeal we consider whether the district court abused its discretion when it struck a defendant's answer, as to liability only, as a discovery sanction pursuant to NRCP 37(b)(2)(C) and NRCP 37(d). We conclude that the district court did not abuse its discretion by imposing non-case concluding sanctions and by not holding a full evidentiary hearing. We further conclude that the district court exercised its inherent equitable power and properly applied the factors set forth in Young v. Johnny Ribeiro Building, 106 Nev. 88, 92-93, 787 P.2d 777, 780 (1990). We therefore affirm the judgment of the district court."
With thanks to Scotusblog:
Carr v. United States - the Court, on a 6-3 vote, reverses and remands in an opinion by Justice Sotomayor. Justice Scalia concurs in part and in the judgment, but joins most of Justice Sotomayor's opinion. Justice Alito dissents, joined by Justices Thomas and Ginsburg.
- Holding: The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect.
The Court rejects the Government's argument that a violation of 18 U.S.C. 2250(a), which requires (1) a sex-offense conviction, (2) subsequent interstate travel, and (3) a failure to register, may be violated by a failure to register after the effective date, even if the conviction and interstate travel took place before the effective date. The Court's ruling deals primarily with statutory interpretation and deals extensively with past tense vs. present tense words. The Court does not address the ex-post facto clause issues because the case is resolved as a matter of statutory interpretation.
Berghuis v. Thompkins - the Court reverses and remands in an opinion by Justice Kennedy. The vote is 5-4, with Justice Sotomayor dissenting joined by Justices Stevens, Ginsburg, and Breyer.
- Holding: The Court upholds the state court decision rejecting the claim of a violation of Miranda v. Arizona. The defendant's silence while being questioned by police did not amount to an invocation of his Miranda right to remain silent.
After advising Thompkins of his rights, detectives interrogated him about a shooting. He did not say that he wanted to remain silent or that he wanted an attorney. He was largely silent during the 3-hour interrogation, but eventually said "yes" when asked if he prayed to God to forgive him for the shooting. The Sixth Circuit found that Thompkins had not waived his right to remain silent and found that the state court was unreasonable in finding an implied waiver based upon Thompkins' response to the detectives. The Supreme Court finds that the state court's decision was correct and that silence during an interrogation does not invoke the right to remain silent. Officers are not required to obtain a waiver before interrogating the accused. As with the right to counsel, the defendant must make an unambiguous invocation of the right to remain silent. In other words, a defendant is required to speak, by saying that he wants to remain silent or does not want to talk, and may not merely remain silent to invoke his right to remain silent. Insane. Here's to hoping that our state constitution provides a more rational result.
Levin v. Commerce Energy - the Court reverses and remands, with Justice Ginsburg writing the opinion for the Court. The vote is unanimous. Justice Kennedy concurs and Justice Thomas concurs in the judgment only, joined by Justice Scalia. Justice Alito concurs separately in the judgment.
- Holding: Under the doctrine of comity, a tax payer's lawsuit claiming discriminatory state taxation must proceed originally in state court, even when it is a request to increase the tax burden on a competitor.
Alabama v. North Carolina - the Court overrules the exceptions to the Special Master's reports and adopts the Special Master's recommendations. Justice Scalia writes the opinion for the Court. The Chief Justice dissents in part and concurs in part, joined by Justice Thomas.
Samantar v. Yousuf - the Court affirms the lower court's judgment and remands the case, in an opinion by Justice Stevens. The vote is unanimous. Justice Alito concurs, Justice Thomas concurs in part and concurs in the judgment, and Justice Scalia separately concurs in the judgment.
- Holding: Former Somalian official Mohamed Ali Samantar's claim of immunity to a damages lawsuit for alleged atrocities in Somalia is not governed by the Foreign Sovereign Immunities Act. But the Court leaves to litigation in the lower court whether Samantar is entitled to common law immunity, or whether he may assert other legal defenses.
The Court granted certiorari in Mayo Foundation for Medical Education and Research v. United States. The issue presented is whether the Treasury Department can categorically exclude all medical residents and other full-time employees from the definition of "student" in 26 USC 3121(b)(1), which exempts from Social Security taxes "service performed in the employ of a school, college or university" by a "student who is enrolled and regularly attending classes at such school, college or university." Briefs are available at the link above.
Marvin v. Fitch - absolute immunity for individual members of the State Board of Equalization.
Betsinger v. D.R. Horton, Inc. - deceptive trade practices
Thomas v. Hardwick - preservation of issues for appeal, spoliation, habit evidence, voir dire, "recall bias"
The Court has issued only one opinion in a criminal case this year. Higgs v. State, which the was publication of a previously issued Order of Affirmance, was issued on January 14, 2010. The Court issued its last original opinion in a criminal case on December 10, 2009.
Via Scoutsblog
United States v. Marcus - reversed and remanded, 7-1, in an opinion by Justice Breyer. Justice Stevens dissents and Justice Sotomayor took no part in the case.
- Holding: The Court overturns the 2d Circuit's standard on "plain error."
United States v. O'Brien -affirmed, 9-0, in an opinion by Justice Kennedy. Justice Stevens concurs and Justice Thomas concurs in the judgment only.
- Holding: The fact that a firearm was a machine gun is an element to be proved to the jury beyond a reasonable doubt, and is not a sentencing factor to be proved to the judge at the time of sentencing.
Robertson v. United States - writ of cert. dismissed as improvidently granted in a per curiam opinion. The Chief Justice dissents, joined by Justices Scalia, Kennedy, and Sotomayor. The issue presented was "whether an action for criminal contempt in a congressionally created court may constitutionally be brought in the name and pursuant to the power of a private person, rather than in the name and pursuant to the power of the United States.
Hardt v. Reliance Standard Insurance - reversed and remanded, 9-0, in an opinion by Justice Thomas. Justice Stevens concurs in part and in the judgment. The Court clarified when a worker covered by an employee benefit plan under ERISA is entitled to recover attorney's fees in a lawsuit over benefits.
Lewis v. City of Chicago - reversed and remanded, in a unanimous opinion by Justice Scalia.
- Holding: A plaintiff who does not file a timely charge challenging the adoption of an employment practice may assert a claim of disparate impact even if the lawsuit is aimed at an application of the practice.
American Needle v. NFL - reversed, in a unanimous opinion by Justice Stevens.
- Holding: The NFL's team joint licensing of the use of trademarks on clothing and other consumer goods may be challenged under the Sherman Antitrust Act's section 1.
The Court also issued a per curiam decision in Jefferson v. Upton, a capital case: "Petitioner Lawrence Jefferson, who has been sentenced to death, claimed in both state and federal courts that his lawyers were constitutionally inadequate because they failed to investigate a traumatic head injury that he suffered as a child. The state court rejected that claim after making a finding that the attorneys were advised by anexpert that such investigation was unnecessary. Under the governing federal statute, that factual finding is presumed correct unless any one of eight exceptions applies.See 28 U. S. C. §§2254(d)(1)-(8) (1994 ed.). But the Court of Appeals considered only one of those exceptions (specifically §2254(d)(8)). And on that basis, it considered itself "duty-bound" to accept the state court's finding, and rejected Jefferson's claim. Because the Court of Appeals did not fully consider several remaining potentially applicable exceptions, we vacate its judgment and remand."
Certiorari grants:
Skinner v. Switzer
The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are granted.
Issue: May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 USC 1983 or is such a claim cognizable only in a petition for writ of habeas corpus
Sossamon v. Texas
Issue: Limited by the Court to this question: whether an individual may sue a state or state official in his official capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act.
Williamson v. Mazda Motor of America, Inc.
Issue: (1) Whether, when Congress has provided that compliance with a federal motor vehicle safety standard "does not exempt a person from liability at common law," 49 U.S.C. § 30103(e), a federal minimum safety standard allowing vehicle manufacturers to install either lap-only or lap/shoulder seatbelts in certain seating positions preempts a state common-law claim alleging that the manufacturer should have installed a lap/shoulder belt in one of those seating positions; (2) whether that same federal motor vehicle safety standard impliedly preempts a state tort suit alleging that the manufacturer should have warned consumers of the known dangers of a lap-only seatbelt installed in one of its vehicles.
AT&T Mobility v. Concepcion
Issue: Whether the Federal Arbitration Act preempts states from conditioning the enforcement of an arbitration agreement on the availability of particular procedures -- here, class-wide arbitration -- when those procedures are not necessary to ensure that the parties to the arbitration agreement are able to vindicate their claims.
Arizona Christian School Tuition Organization v. Winn; Garriott v. Winn
Issues: (1) Whether respondents have taxpayer standing when they cannot allege that the Arizona Tuition Tax Credit involves the expenditure or appropriation of state funds; and (2) whether a tax credit that advances the legislature's legitimate secular purpose of expanding educational options for families unconstitutionally endorses or advances religion simply because taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
Briefs and lower court opinions on the cert. grants are available at the Scotusblog link above.
The Court issued its last published opinion in a criminal case on January 14, 2010. That case involved the publication of a previously unpublished order. The last original opinion in a criminal case was issued on December 10, 2009.
For those interested in civil cases, here you go:
Easton Business Opportunities v. Town Executive Suites-Eastern Marketplace - "This dispute involves a commission claimed under an exclusive right-to-sell brokerage agreement for the sale of a business. After a bench trial, the district court ruled in favor of the seller and against the broker's assignee. It found the assignment ineffective and the commission unrecoverable, based on the broker's breach of an implied duty to have given the seller a list of the people to whom the broker had shown the business, to whom the seller could not sell during the extension period without incurring liability for a commission. The agreement, as written, supports the opposite result and should have been upheld. Upholding the commission claim makes it necessary to reach the assignee's fraudulent conveyance claims, as to which unresolved issues of fact remain. Accordingly, we reverse and remand."
State, DMV v. Taylor-Caldwell - In this appeal, we confirm that a single test to determine the concentration of alcohol in a person's breath will require revocation of a driver's license. We conclude that while NRS 484.386(1) requires that two consecutive samples of breath be taken to provide an evidentiary basis for the concentration of alcohol in a person's breath, NRS 484.384 does not require that the two consecutive samples be over the legal limit to mandate revocation; only one valid sample must be over the legal limit in order for the Department of Motor Vehicles (DMV) to revoke a driver's license. The requirements in NRS 484.386(1) that two samples be taken and that the test results be within 0.02 of each other is merely an evidentiary requirement to validate the test.
The US Supreme Court issued one opinion today. In a unanimous decision, authored by Justice Thomas, the Court holds in United Student Aid Funds v. Espinosa that a bankruptcy court order, which discharged a student loan debt without a showing of undue hardship, was not void under Rule 60(b)(4) and was not void based on the debtor's failure to serve the creditor because the creditor had actual notice of the plan and failed to object.
Yesterday, the Court granted certiorari in four cases. Scotusblog provides details and links to relevant docs:
Title: Connick v. Thompson
Docket: 09-571
Issue: (1) Does imposing liability for failing to train a prosecutor on a district attorney's office for a single Brady violation contravene rigorous culpability and causation standards? (2) Does imposing failure-to-train liability on a district attorney's office for a single Brady violation undermine prosecutors' absolute immunity?
- Ruling denying retrial below and judgment below (District Court for the Eastern District of Louisiana; 5th Circuit en banc panel split evenly, affirming the district court decision)
- Petition for certiorari
- Brief in opposition
- Petitioners' reply
- Amicus brief of the National District Attorneys Association
- Amicus brief of Orleans Parish Assistant District Attorneys
Title: Belleque v. Moore
Docket: 09-658
Issues: (1) Whether the Fulminante standard -- that the erroneous admission of a coerced confession at the trial is not harmless -- applies when a collateral challenge is based on a defense attorney's decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it "clearly established Federal law" for purposes of 28 U.S.C. § 2254(d)(1).
- Opinion below (9th Circuit)
- Petition for certiorari
- Petitioner's reply
Title: Kasten v. Saint-Gobain Performance Plastics Corp.
Docket: 09-834
Issue: Is an oral complaint of a violation of the Fair Labor Standards Act protected conduct under the anti-retaliation provision, 29 U.S.C. § 215(a)(3)?
- Opinion below, opinion below denying rehearing (7th Circuit)
- Petition for certiorari
- Brief in opposition
- Petitioner's reply
Title: Flores-Villar v. United States
Docket: 09-5801
Issue: Whether the Court's decision in Nguyen v. Immigration and Naturalization Service (2001) permits gender discrimination that has no biological basis?
Via Scotusblog, the US Supreme Court issued opinions in 2 cases today.
The first opinion is Milavetz, Gallop & Milavetz, P.A. v. United States. Justice Sotomayor writes for the Court, joined in full by six Justices and in part by Justices Scalia and Thomas. Justice Scalia concurs in part and concurs in the judgment, joined by Thomas. The Court holds that attorneys who provide bankruptcy assistance are debt-relief agencies under the bankruptcy abuse law. The opinion is here.
The second opinion is in Bloate v. United States, reversing and remanding the lower court decision on a 7-2 vote. Justice Thomas writes for the Court. Justice Ginsburg joins the opinion but files a separate concurrence. Justice Alito dissents, joined by Justice Breyer. The time granted to prepare pretrial motions is not automatically excluded from the 70-day limit under the Speedy Trial Act of 1974. The opinion is here.
Via Scotusblog:
In Johnson v. United States, the Court rules 7-2 that a "violent felony" under federal law requires the use of physical violence, thereby reversing and remanding the lower court. Justice Scalia writes for the majority, while Justice Alito dissents, joined by Justice Thomas. The full opinion in pdf format is here.
The case concerns a sentencing enhancement under the Armed Career Criminal Act, which authorizes an enhanced penalty for a person who violates 18 USC 922(g) and has three previous convictions for "a violent felony." The government claimed that the defendant's misdemeanor conviction for simply battery qualified under the statute because the defendant had previously been convicted of another battery, so this misdemeanor offense was a felony under Florida law. Florida defined battery as occuring when a person either "actually and intentionally touches or strikes another person against his will" or "intentionally causes bodily harm to another person." The Court found there was nothing in the record permitting the trial court to find that the defendant's conviction rested upon "striking" or "intentionally causing bodily harm" elements of the offense. The language of the statute that permitted a conviction for "actually and intentionally touching" another, does not constitute the use of "physical force" under 18 USC 924(e)(1). The interpretation of "physical force" is a matter of federal law, not state law, so it does not matter that the Florida Supreme Court has found that a battery is a violent offense. The federal statute does not define "force" - the Court finds that it means the application of strength, power and violence. The force must be capable of causing physical pain or injury to another person.
In Reed Elsevier v. Muchnick, on a 5-3 vote, the Court reverses and remands, ruling that a copyright must be registered before one may file an infringement claim, but the failure of a copyright holder to have a registration does not restrict a federal court's power to decide infringement claims involving works that are not registered. Justice Thomas delivers the majority opinion; Justice Ginsburg concurs in part and concurs in the judgment, joined by Justices Stevens and Breyer. Justice Sotomayor took no part in the decision. The full opinion is here.
In Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service, the Court reverses in part, limiting the right of the holder of a franchise to sue after the franchise agreement is terminated. Justice Alito writes the unanimous opinion of the Court, which is here.
In Florida v. Powell, a 7-2 decision authored by Justice Ginsburg, the Court finds that Miranda warnings were sufficient and did not mislead the accused into believing that he could not have an attorney present during questioning. The Court notes that it has not required specific language for the warnings, so long as the warnings reasonably convey to a suspect his rights as required by Miranda. The Court also finds that a federal question is presented despite the Florida Supreme Court's citation to its state constitution as a basis for its holding.
The Court also issued an opinion in Hertz Corp. v. Friend. The opinion concerns diversity-of-citizenship jurisdiction and finds that a corporation's principal place of business is the place where the corporation's high level officer's direct, control and coordinate the corporation's activities - it's nerve center.
Yesterday, the Court issued a per curiam, summary decision in Thaler v. Haynes. The Court found that, under AEDPA, a trial judge need not personally observe a potential juror's behavior in later deciding whether the prosecutor used a peremptory challenge based upon the juror's race. The prosecutor here claimed that the peremptory was used because of the juror's demeanor. No prior ruling of the Court has required that the judge be present during jury selection in order to evaluate a Batson claim under these conditions.
The Court also issued a summary decision in Wilkins v. Gaddy. The Court found that claims of excessive force on a suspect must be evaluated on the basis of the nature of the foce used, not on whether the plaintiff suffered an injury during the incident.
In Briscoe v. Virginia, the Court accepted certiorari on issues concerning the Confrontation Clause and expert testimony. After hearing oral argument, the Court summarily vacated the judgment of the Supreme Court of Virginia and remanded the case for further proceedings not inconsistent with Melendez-Diaz v. Massachusetts.
In Hemi Group v. City of New York, the Court addresses a civil RICO action and finds that because the City of New York cannot show that it lost tax revenue "by reason of" an alleged RICO violation (based on failure to provide customer information for internet cigarette purchases), it cannot state a RICO claim. The plaintiff must show a direct relationship, "but for" causation and proximate causation.
The Court granted certiori in two cases, that were consolidated for oral argument: Abbott v. United States and Gould v. United States. They present the question of (1) whether the term "any other provision of law" of 18 USC 924(c) includes the underlying drug trafficking offense or crime of violence; and (2) if not, whether it includes another offense for possessing the same firearm in the same transaction. Scotusblog provides the opinion below, petition for cert. and the response.
Via Scotusblog, the US Supreme Court issued four authored opinions this morning.
Beard v. Kindler Vacated and remanded. Chief Justice Roberts authored the opinion of the Court; Justice Kennedy concurred, joined by Justice Thomas. Justice Alito took no part. The Court holds that a state procedural rule is not automatically "inadequate" under the adequate state ground doctrine, for federal habeas corpus petitions, because the state procedural rule is discretionary rather than mandatory. The controlling question is whether the state rule is firmly established and regularly followed.
The opinion is here.
Alvarez v. Smith : Vacated and remanded as moot. Justice Breyer authored the opinion of the Court; Justice Stevens joined in part, filing an opinion concurring in part and dissenting in part (so the vote count is 8-1 on some parts). The Court had granted certiorari on the issue of whether a state's failure to provide a speedy postseizure hearing, concerning forfeiture of movable personal property used to facilitate a drug crime, violated the federal due process clause. The Court finds that the case is moot because the property disputes between the parties had been resolved. The Court finds that the lower court judgment should be vacated.
The opinion is here.
Mohawk Industries v. Carpenter Affirmed. Justice Sotomayor delivered the opinion of the Court; Justice Thomas joined in part and filed a separate opinion concurring in part and concurring in the judgment. The Court holds that disclosure orders about the attorney-client privilege cannot qualify for immediate appeal under the collateral order doctrine. An erroneous order compelling disclosure can be remedied by postjudgment review. In other situations, a party may ask for an interlocutory appeal involving a controlling question of law, a party may seek a writ of mandamus, or the party may defy a disclosure order and incur court-imposed sanctions.
The opinion is here.
Union Pacific Railroad Co. v. Brotherhood of Teamsters : Affirmed. Justice Ginsburg wrote for a unanimous Court. The opinion deals with jurisdiction and the National Railroad Adjustment Board. Scotusblog will have more details.
The opinion is here.
Wyman v. State - The defendant was convicted of second-degree murder for the 1974 killing of her son. The Court rejects her challenge to the district court's order denying a motion to dismiss based upon pre-indictment delay. The Court finds that the district court did not abuse its discretion in denying the motion because she failed to demonstate that she was prejudiced by the delay and did not prove that the State intentionally delayed filing the complain to gain a tactical advantage over her.
The Court grants relief, and reverses the conviction, however, based upon a finding that the district court abused its discretion in denying her request for a certificate of materiality to obtain the out-of-state mental health records of the State's primary witness, under Nevada's Uniform Act to Secure the Attendance of Witnesses From Without a State in Criminal Proceedings, codified in NRS 174.395 through 174.445. The Court finds that the records were "material" because they had some logical connection with the facts of consequence of the issues presented in the case. The error was not harmless under the facts of the case.
Webb v. Clark County School District - The Paul D. Coverdell Teach Protection Act of 2001 is an affirmative defense in a civil action involving a teacher and student. The Court also finds that deamages for psychological services rendered in Nevada by a person who is not properly licensed in this state is not recoverable.
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Rodriguez v. Primadonna Company In this appeal, we consider whether the district court properly entered summary judgment in favor of the respondent hotel corporations, dismissing appellant's negligence claim. Appellant's claim was grounded, in part, on allegations that respondents' security personnel acted unreasonably when they evicted an intoxicated minor patron, who was injured in a motor vehicle accident. We conclude that the eviction was reasonable as a matter of law. We further conclude that Nevada's rejection of dram-shop liability applies to a claim for damages made by an intoxicated patron that occur after the patron is reasonably evicted. Second, in this appeal, we are asked to review whether the district court properly denied respondents' motion for attorney fees and costs, which was grounded on an assertion that appellant's negligence action was frivolous. According to respondents, the action was frivolous because it was barred by relevant legal authority. Because appellant's claims are based upon a nonfrivolous argument for the extension of the law defining negligent eviction, we conclude that the district court properly denied respondents' motion for attorney fees and costs. Finally, we are asked to determine whether a cross-claimant can maintain an implied indemnity claim when the underlying liability action is dismissed through summary judgment without a finding of fault against the proposed indemnitor. Having considered persuasive authority from other jurisdictions, we conclude that a prerequisite to recovery on an implied indemnity claim is a finding that the third-party defendant is liable for damages to the plaintiff on the underlying claim. Implied indemnity cannot be used to allow one innocent party to recover its defense costs from another innocent party. Accordingly, the district court's dismissal of the third-party claim was ultimately proper because no right to implied indemnity exists for defense fees and costs when the district court has dismissed the underlying claim but has not determined the fault of the third-party defendant. |
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| Delgado v. American Family Ins. Group | |
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"We conclude that a passenger who is injured by two concurrently negligent drivers may recover from both the permissive driver's single insurance policy liability benefits based on the permissive driver's negligence and underinsured motorist benefits based on the other driver's underinsured status. In so doing, we clarify that Peterson and Baker are not determinative on this issue. The antistacking rule set forth in Peterson and Baker is not implicated when a passenger, whose injuries are attributable to two jointly negligent drivers, exhausts the liability limits of the permissive driver's policy without satisfying his or her damages, and seeks recovery under the permissive driver's underinsured motorist policy based on the other driver's underinsured status. Accordingly, we reverse the district court's grant of summary judgment." |
McConnell v. State - the Court, sitting en banc, issues a per curiam decision affirming an order of the district court dismissing McConnell's post-conviction petition for a writ of habeas corpus in a capital case. The Court concludes, in addressing an issue of first impression in Nevada, that challenges to Nevada's lethal injection procedures are not properly raised in a state court habeas petition. The Court also finds that McConnell's guilty plea was knowingly and voluntarily entered and he did not have a right to effective assistance of stand-by counsel. The Court next find that appellate counsel was not ineffective for failing to challenge a penalty phase instruction on the ground that it did not specify that the aggravating factors had to outweigh the mitigating factors beyond a reasonable doubt before it could impose death. The Court next finds that appellate counsel was not ineffective for failing to challenge the Court's mandatory review of death sentences on the ground that there are no standards for the review; for failing to argue that it was prejudicial to have his trial and appeal reviewed by elected judges; for failing to challenge the death qualification process for jurors; and for failing to adequately address the aggravating circumstances issue presented in McConnell I (felony murder aggravators cannot be used if felony murder is the basis for the judgment).
The good news is that the Court rejects the State's argument that McConnell I was wrongly decided and should be overturned. (Footnote 15).
MGM Mirage v. Nevada Ins. Guaranty Ass'n - self-insured employers under the Workers' Compensation Act are not barred from recovering payment from the Nevada Insurance Guaranty Assocation for their covered workers' compensation claims payable by their isolvent excess insurance carrier.
St. James Village, Inc. v. Cunningham - servient estate, unilateral relocation of easements and inconvenience of dominant estate owners.
Reading these opinions reaffirms my desire to practice criminal law. I'm skippping analysis of both.
Melendez-Diaz v. Massachusetts - a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence and is therefore not admissible, per Crawford v. Washington, absent the opportunity to confront and cross-examine the person who prepared the report. A State may enact a "notice-and-demand" statute which allows a state to give pretrial notice of its intention to use an affidavit and places the responsibility on the defense to object by demanding that the State produce the witness. The 5-4 opinion was authored by Justice Scalia. Justice Kennedy filed a dissenting opinion which was joined by Chief Justice Roberts and Justices Breyer and Alito.
The opinion is consistent with existing Nevada case authority - Las Vegas v. Walsh, 121 Nev. 899, 904-06, 124 P.3d 203, 207-08 (2005) (citing in footnote 11 of the Melendez opinion).
Safford United School District #1 v. Redding - the Fourth Amendment prohibits public school officials from conducting a strip search of a student suspected of possessing and distributing a prescription drug on campus in violation of a school policy, but the constitutional right was not clearly established at the time of the search so the girl cannot sue for damages. Justice Souter authored the majority opinion. Justice Stevens filed a partial dissent joined by Justice Ginsburg. Justice Ginsburg filed an opinion concurring opinion and dissenting in part. Justice Thomas concurred in part and dissented in part.
Atlantic Sounding Co. Inc. v. Townsend - concerns whether a seaman may recover punitive damages for the willful failure to pay maintenance and cure. 5-4 decision authored by Justice Thomas. Justice Alito authored a dissenting opinion which was joined by Chief Justice Roberts and Justices Scalia and Kennedy.
Horne v. Flores; Speaker of the Arizona House of Representatives v. Flores - concerns an injunction against Arizona for failing to provide sufficient funding for non-English speaking school children. 5-4 decision authored by Justice Alito. Justice Breyer authored the dissenting opinion which was joined by Justices Stevens, Souter and Ginsburg.
The remaining 3 decisions of the 2008--09 term will be released on Monday.
Coeur Alaska, Inc. v. Southeast Alaska Conservation Council - Something about fill permits, slurry, the EPA and the Corps. You're on your own for this one. 6-3 decision authored by Justice Kennedy, Justice Ginsburg filed a dissenting opinion which was joined by Justices Stevens and Souter, and Justices Breyer and Scalia filed concurring opinions.
Forest Grove School Dist. v. T.A. - The Individuals with Disabilities Education Act authorizes reimbursement for private special-education service when a public school fails to provide a "free appropriate public education" and the private school placement is appropriate, regardless of whether the child preciously received special-education services through the public school. 6-3 decision authored by Justice Stevens. Justice Souter filed a dissenting opinion which was joined by Justices Scalia and Thomas.
Northwest Austin Municipal Utility District v. Holder - constitutional issue avoided concerning Section 5 of the Voting Rights Act, but significant expressions of doubt are voiced. 8-1 decision authored by Chief Justice Roberts. Justice Thomas filed a partial dissent. Scotusblog has lots of analysis on the opinion.
The court granted certiorari in 3 cases:
U.S. v. Comstock - constitutionality of a 2005 federal law giving federal officials authority to order the long-term confinement of persons considered to be sexually dangerous.
Florida v. Powell - whether Miranda warnings to a suspect in police custody must include an explicity assurance that the suspect may have a lawyer in the room during questioning.
Graham County Soil & Water v. U.S. - whether lawsuits seeking to recover misspent federal funds are barred in the information behind the lawsuits was revealed in local agency reports or audits, rather than in federal proceedings.
Scotusblog has links to the opinions of the courts below, petitions, oppositions, and amici briefs.
Yeager v. United States - A jury's acquittal of an Enron executive of securities and wire fraud charges may have erected a double jeopardy bar to his retrial on factually related insider-trading and money-laundering charges on which the jury deadlocked. Prosecutors may not try an individual again on the "hung" counts if they had a common element with those on which the jury acquitted. 6-3 decision authored by Justice Stevens.
District Attorney's Office for Third Judicial District v. Osborne - A state prisoner has no freestanding constitutional right under the due process clause to obtain post-conviction access to forensic evidence in order to subject it to DNA testing to establish his innocence following resolution of trial and habeas proceedings. Access to DNA evidence following a final conviction is a legislative matter. 5-4 decision authored by Justice Roberts with concurrences by Alito, Kennedy and Thomas.
Gross v. FBL Financial Services Inc., - The burden of persuasion required to establish employer liability under the Age Discrimination in Employment Act is the same in cases where the employer's motives in acting against the employee are allegedly mixed as in any other ADEA action involving allegations of disparate treatment. The burden does not shift to the employer in mixed motive cases to show that it would have taken the alleged adverse action regardless of the employee's age. A 5-4 decision authored by Justice Thomas.
Travelers Indemnity Co. v. Bailey. The terms of an injunction precluding certain lawsuits against insurers of bankrupt Johns-Manville Corp., an asbestos manufacturer, included as part of the company's 1986 bankruptcy reorganization plan, bar state-law actions brought against Manville's insurer over a decade later. The finality of the bankruptcy court's orders after direct review "generally stands in the way of challenging the enforceability of the injunction." A 7-2 decision authored by Justice Souter.
Polar Tankers Inc v. City of Valdez-Alaska - The Court finds invalid a tax imposed by the city of Valdez on cargo ships that used its port. A 7-2 decision.
Nijhawan v. Holder - Clarifies findings that an immigration judge must make in order for a conviction of a crime to be used as the basis for deportation. A 9-0 decision.
Ramet v. State - The State may not introduce evidence of a defendant's refusal to consent to a search of his home, and the prosecutor may not comment about the refusal to consent, but the evidence is harmless under the facts of this case.
Rivera v. Philip Morris, Inc. - NRAP 5 certification re: whether Nevada law recognizes a heeding presumption in strict product liability failure-to-warn cases.
Abuelhawa v. United States - In a unanimous decision authored by Justice Souter, the Court holds that using a cellphone to make a drug purchase when the crime would be only a misdemeanor does not "facilitate" a felony distribution crime.
Haywood v. Drown - in a 5-4 decision authored by Justice Stevens, the Court holds that it is unconstitutional for a state to bar all damage lawsuits brought under a federal civil rights law against prison officers or guards. New York had allowed only a claim against the state itself in a special claims court.
Montejo v. Louisiana - In a 5-4 decision authored by Justice Scalia, the Court overrules Michigan v. Jackson concerning the rights of a criminal suspect in police custody after the appointment of counsel.
The facts: Montejo was charged with first degree murder and the court ordered the appointment of counsel during a 72-hour hearing. Later that day, the police read Montejo his rights under Miranda v. Arizona and he agreed to go along on a trip to locate the murder weapon. During the trip he wrote an inculpatory letter of apology to the victim's widow. After returning from the trip, he met his court appointed attorney for the first time. Counsel objected to admission of the letter at trial, but it was admitted and Montejo was convicted.
The Court holds that stare decisis does not preclude reconsideration of Michigan v. Jackson. The Court finds that Edwards v. Arizona provides enough protection for suspects who want to invoke their Miranda rights and that Jackson is not necessary to protect a defendant's rights. The Court holds that a defendant has the right to waive his Sixth Amendment rights and that counsel need not be present or consulted when a client elects to waive those rights by speaking with the police after counsel has been appointed. "Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance." The Court acknowledges that Miranda and Edwards guarantee Fifth Amendment rights, not Sixth Amendment rights, and apply only if the suspect is in custody, but find that Sixth Amendment rights for suspects not in custody are unnecessary because "when a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering."
As for Nevada, the Court has cited to Michigan v. Jackson in two opinions but has not indicated whether it found the rule established in Jackson to be sound. The Court could hold that the protections provided for by Jackson should be recognized by our state constitution.
I initially thought that the quick fix here is for counsel to consult with the client and invoke the right to counsel at the first court appearance for all interrogations and interactions with the police or other state agents. Such action should guarantee that the client receives the assistance of counsel at every stage of the proceedings, including questioning by police officers. After a long, and good, discussion with Chip Siegel, I'm not sure that my initially thought on a remedy was correct. It may be that the client will have to invoke the right to counsel at the time of the interrogation and that a blanket waiver during the first court appearance will not be sufficient, although it probably wouldn't hurt either. Advice to the client is therefore critical in making sure that he is not interrogated by officers following the appointment of counsel. I'll keep an eye our for analysis by others following this issue.
In Hannon v. State, the Court reverses a conviction, entered pursuant to a plea of nolo contendere, of one count of possession of a controlled substance. The Court finds that an "emergency" search of a home was unlawful because there was no objectively reasonable basis to believe that the two occupants or any undisclosed third party may have been in danger inside. The opinion brings Nevada case law into conformity with the decision of the United States Supreme Court in Brigham City v. Stuart, 547 U.S. 398, 404 (2006).
Hannon involves a call to an apartment based upon a 911 call of a neighbor concerning a domestic disturbance. Both the adult male and the female stated that they were okay and refused permission for the police officers to enter the apartment. Officers stated that they pushed their way into the apartment to protect the safety of the occupants and then saw pot and paraphernalia once they were inside. The district court denied the suppression motion, even though the police officer admitted that he did not have any evidence that another occupant may have been inside who needed emergency assistance, but "just had suspicions." The Nevada Supreme Court reversed. The officer's subjective motivations are irrelevant. An objective standard applies. Under the facts here, there was no objectively reasonable basis to believe that a third party was injured inside.
Via Scotusblog:
Ashcroft, et al., v. Iqbal: in a 5-4 decision, the Supreme Court on Monday threw out a claim that two top Bush Administration officials adopted a specific policy of racial and ethnic discrimination in a roundup and detention of hundreds of men of Arab descent following the terrorist attacks of Sept. 11, 2001. The Court held that the lawsuit did not cite specific enough factual grounds for a claim of intentional bias by former Attorney General John D. Ashcroft and then-and-current FBI director Robert Mueller. The Court did not, however, declare legal immunity for Ashcroft, Mueller, or other lower-ranking officials who allegedly carried out discriminatory policies sent down from the top. Rather, the Court addressed only the requirements that had to be made in the initial lawsuit to show that the selection of those to be rounded up were the result of race, religious or national origin bias, in order to survive a motion to dismiss. The case was remanded to the 2nd Circuit for a decision on whether the plaintiffs could amend their lawsuit.
AT&T Corp. v. Hulteen: The Court rule in a 7-2 decision, that federal law does not require an employer to set current pension benefits at a level that will make up for a denial of work credit for maternity leave for pregnant workers, when such a denial was not illegal at the time it ook place. Neither the law that pre-dated the case nor a new law on job bias made it illegal for a company to decline to upgrade benefits to account for past employment actions that were legal at the time. The denial was not a form of discrimination based on sex under the law as it existed prior to Congress's passage of the Pregnancy Discrimination Act in 1978. Failing to make up for the past denial, it concluded, was a legitimate choice to make in a pension system that was not intentionally discriminatory.
The US Supreme Court issued four opinions today:
Flores-Figueroa v. United States - The decision below, which held for the United States, is reversed and remanded in a 9-0 opinion by Justice Breyer, available here. Justice Scalia filed an opinion concurring in part and in the judgment, joined by Justice Thomas, and Justice Alito filed an opinion concurring in part and in the judgment. 18 USC 1028A(a)(1) forbids "aggravated identity theft" and imposes a mandatory consecutive two-year prison term for a person convicted of certain predicate crimes. The statute requires that the government establish that the defendant "knowingly . . . uses, without lawful authority, a means of identification of another person." The defendant gave his employer counterfeit Social Security and alien registration cards contaning his name but other people's identification numbers and was charged under the statute. He moved for acquittal on a claimt hat the government could not prove that he knew the documents' numbers were assigned to other people. The government argued, and the federal district court and Eighth Circuit agreed, that the word "knowingly" did not apply to "of another person." The Supreme Court unanimously reversed and held that under 1028 the government must show that the defendant knew that the means of identification at issue belonging to another person. As a matter or ordinary English grammar, "knowingly" is naturally read as applying to all the subsequently listed elements of the crime. Where a transitive verb has an objects, listerns in most context assume that an adverb, such as knowingly, thad modifies the verb tells the listener how the subject performed the entire action, including the object.
Carlsbad Technology, Inc. v. HIF Bio, Inc. The decision below, which held for HIF Bio, is reversed and remanded in a 9-0 opinion by Justice Thomas, available here. Justice Stevens and Justice Scalia filed concurring opinions. Justice Breyer filed a concurring opinion, joined by Justice Souter. The Court holds that a federal district court's order remanding a case to state court after declining to exercise supplemental jurisdiction over state-law claims is not a remand for lack of subject-matter jurisdiction. Appellate review of the order is therefore not barred by 28 USC 1447.
Arthur Andersen LLP, et al. v. Carlisle, et al. The decision below, which held for the company owners, is reversed and remanded in a 6-3 opinion by Justice Scalia, available here. Justice Souter filed a dissenting opinion, joined by Chief Justice Roberts and Justice Stevens. The opinion addresses stays of actions involving arbitration and appeals from orders denying stay motions.
Burlington Northern and Santa Fe Railway Company, et al. v. United States; Shell Oil Company v. United States The decision below, which held for the United States, is reversed and remanded in an 8-1 opinion by Justice Stevens available here. Justice Ginsburg filed a dissenting opinion. - The opinion addresses liability of an arranger for contamination under CERCLA.
With thanks to scotusblog for the links and early info.
Sims v. Eighth Judicial District Court (Glass) - defense counsel may introduce independent competency evaluations during a competency hearing.
Scarbo v. Eighth Judicial District Court (Glass) - a defendant is entitled to full and complete copies of a court-appointed examiners' competency reports prior to a competency hearing. The Court also notes that defense counsel are entitled to communicate the court appointed competency examiners.
Both of these are important defense victories. Congrats to Howard Brooks, Christy Craig and the other attorneys from the Public Defender's Office who worked on these writs.
Allstate Insurance Co. v. Fackett - insurance policies for injury to uninsured third parties.
In Dean v. United States, the Court holds, in a 7-2 opinion authored by Chief Justice Roberts, that under 18 USC 924(c)(1)(A)(i), which provides for a firearm enhancement of 5 years for using or carrying a firearm and an enhancement of 10 years if the firearm is discharged, that the 10 year enhancement applies even if the discharge is accidental as no proof of intent to discharge the firearm is required. Dissenting opinions were filed by Justices Stevens and Breyer. Various rules of statutory construction are discussed throughout the opinion.
In Kansas v. Ventris, the Court holds, in a 7-2 opinion authored by Justice Scalia, that a defendant's statement to an informant which was elicited in violation of the Sixth Amendment, was admissible to impeach the defendant's inconsistent testimony at trial. Justice Stevens filed a dissenting opinion which was joined by Justice Ginsburg.
The majority holds that whether a confession that is not admissible in the State's case in chief nonetheless can be admitted for impeachment purposes depends on the nature of the constitutional guarantee which was violated. The Fifth Amendment guaranteed against compellsed self-incrimination is violated by introduction of a coerced confession at trial, by way of impeachment or otherwise. In contrast, the Fourth Amendment guarantee against unreasonable search or seizues, where exclusion comes by way of a deterrent sanction rather than to avoid a violation of the substantive guarantee, results in an admissibility determination based upon an exclusionary-rule balancing test. This same result holds for violations of the Fifth and Sixth Amendment prophylactic rules prohibiting certain pretrial activities by police. The Massiah violation at issue here is a component of the Sixth Amendment right to counsel, but the right covers pretrial interrogations to ensure that police manipulation does not deprive the defendant of effective representation by counsel at a stage when legal aid and advice would help him. A violation of Massiah requires the exclusion of the evidence from the State's case in chief, but does not preclude introduction of the evidence for impeachment purposes where the defendant testifies. The majority finds that the interests safeguarded by excluding tainted evidence for impeachment purposes are outweighed by the need to prevent perjury and to assure the integrity of the trial process.
Some good news: the Court notes that the trial court gave a cautionary instruction on the unreliability of rewarded informant testimony. It's by no means the holding of the case, but the footnote is worth attention - especially in light of the otherwise unfavorable decision.
A question concerning prior inconsistent statements is presented under Nevada law which was not squarely addressed in Ventris. Under the Nevada Rules of Evidence, unlike the Federal Rules, prior inconsistent statements are admissible as both impeachment and susbtantive evidence. My reading of Ventris and the cases cited therein is that testimony by an informant that was obtained in violation of Massiah would not be admissible as substantive evidence, but is admissibly only as impeachment evidence in the event that the defendant testifies. Counsel should request a limiting instruction if such statements are introduced. It appears that the Nevada Supreme Court implicitly recognized this limitation in Kaczmarek v. State, 120 Nev. 314, 331 (2004).
This morning the US Supreme Court issued an opinion in Harbison v. Bell. In a 7-2 decision the Court holds that federal habeas corpus counsel may represent a defendant in state clemency proceedings.
Yesterday the Court issued an opinion in Rivera v. Illinois. The cases concerned an erroneous denial of a defense peremptory challenge of a potential juror. The trial court refused the challenge on Batson grounds. The Illinois Supreme Court found the district court's ruling to be erroneous but affirmed the conviction after finding that the denial of the challenge was not structural error. The US Supreme Court affirmed and held that so long as all jurors seated in a criminal case are qualified and unbiased, the Due Process Clause does not require automatic reveral of a conviction based on the trial court's good faith error in denying a defense peremptory challenge. It is an issue of state law, not a matter of federal constitutional law.
Three opinions were issued in civil cases:
14 Penn Plaza LLC v. Pyett - courts must enforce a labor contract that requires workers to take claims of age bias to arbitration rather than court.
Entergy Corp. v. EPA - concerning the EPA's authority to compare costs and benefits when deciding what technology to require for structures that affect river and stream flows.
Hawaii v. Office of Hawaiian Affairs - concerning the state's authority to sell state lands.
The Court also issued an opinion in Philip Morris USA, Inc. v. Williams, concerning punitive damages, in which it dismisses the writ of certiorari as improvidently granted.
In re Application of Shin - The Court holds that NRS 179.245(5), which prohibits Nevada courts from sealing records concerning sexually based offenses, does not improperly impinge upon the power of the State Board of Pardons Commissioners to issue pardons. Although the Pardons' Board has expansive powers, it does not have the power to remove the historic fact that a conviction occurred and it cannot bequeath innocence. A pardon is an act of forgiveness that restores civil rights and removes most legal consequences of a criminal conviction, but there is no right to expunge a criminal record in the absence of legislative authority. The opinion includes a lengthy discussion of the authority of the Pardons Board.
Mack v. Estate of Mack - The Court holds that (1) it may take judicial notice of the outcome of proceedings in which one spouse was adjudged to have murdered the other; (2) a nunc pro tunc order was properly entered to memorialize a judge's oral orders; (3) the district court properly issued a Qualified Domestic Relations Order during the deceased's spouse's lifetime; and (4) Nevada's slayer statute is not preempted by ERISA.
Terracon Consultants v. Mandalay Bay - The Court answers a certified question, pursuant to NRAP 5, regarding the scope of Nevada's economic loss doctrine.
The Nevada Supreme Court issued its seventh opinion of the year.
In Collins v. State, the Court finds that NRS 0.060(2)'s definition of substantial bodily harm as "prolonged physical pain" is not unconstitutionally vague.
Pleasant Grove City, Ut v. Summum - 9-0 opinion authored by Justice Alito. Concurring opinions by Justices Stevens (joined by Justice Ginsburg), Scalia (joined by Justice Thomas), Breyer and Souter. Government bodies may accept permanent religious monuments in public parks without violating the rights of others who are denied a chance to have a different religious monument share space in the public space. Such a monument, whether it is government financed or privately donated, is "government speech" which conveys a message that it wishes to get out about "esthetics, history, and local culture." A religious sect, the Summum, contended that its Free Speech rights were violated when a city accepted a Ten Commandments monument in its public park but refused to accept a Seven Aphorisms monument. Justice Alito's opinion found that the Free Speech Clause does not apply to the messages of government and rejects Summum's argument that placement of a monument in a public park involves private speech in a public forum. Justice Alito also noted that the government is not free to convey messages that violate the Constitution's ban on official establishment of religion, but that was not at issue in the Summum case. Inclusion of the lyrics to "Imagine" by John Lennon, at pages 12 and 13 of the opinion, is a nice touch for any Supreme Court opinion.
Pacific Bell Telephone Co. v. linkLine Communications - 9-0 opinion authored by Chief Justice Roberts. Concurring opinion by Justice Breyer. Sherman Act and price squeezing. Sorry - I have a brief due and no time to decipher this one.
United States v. Hayes - a 7-2 opinion authored by Justice Ginsburg - a 1996 federal law prohibiting possession of guns by a person convicted of a misdemeanor domestic violence applies whenever the victim was in fact the wife or other family relative of the offender. The domestic relationship must be proved beyond a reasonable doubt but it is not a necessary element of the predicate crime. It is sufficient for the government to charge and prove a prior conviction that was, in fact, an offense committed against a spouse or other domestic victim.
Ysursa v. Pocatello Education Association, 6-3 opinion authored by Chief Justice Roberts - the Constitution allows a state government to ban payroll deductions for labor union political activities when the ban applies to the paychecks of local government workers.
Carcieri v. Salazar (Interior Secretary), 6-3 opinion authored by Justice Thomas - the Court limits the federal government's authority to take parcels of land and put them into trust for the benefit of Indian tribes. This power only applies to tribes that were officially recognized by the government in 1934.
Links to opinions provided by Scotusblog.
The Nevada Supreme Court did not release any published opinions this week. The Court published its most recent opinions on January 29, 2009. To date, there are 6 published decisions this year.
The Court has not posted an unpublished dispositions in the last month. The date of the last unpublished decision is January 16, 2009.
The Nevada Supreme Court did not release any published opinions this week. The Court published its most recent opinions on January 29, 2009. To date, there are 6 published decisions this year.
The Court has not posted an unpublished dispositions in the last month. The date of the last unpublished decision is January 16, 2009.
Nika v. State - In an en banc opinion authored by Justice Hardesty, with Justices Cherry and Saitta dissenting, the Court finds the following: "The primary issue in this appeal concerns a jury instruction defining premeditation, commonly referred to as the Kazalyn instruction, and our decision in Byford v. State, which addressed specific concerns about that instruction. Appellant Avram Nika challenges our subsequent decisions that Byford announced a new rule with prospective affect. In considering his argument, we reexamine whether our decision in Byford constituted a clarification of existing law or a change in the law respecting the meaning of the mens rea for first-degree murder. We hold that Byford announced a change in state law that applies prospectively to murder convictions that were not final when Byford was decided. Nika's conviction was final before Byford was decided. Consequently, we conclude that Nika's trial and appellate counsel were not ineffective for failing to challenge the Kazalyn instruction as that instruction was a correct statement of the law at the time of his trial."
In reaching this decision, the Court criticizes the Ninth Circuit's opinion in Polk v. Sandoval: "The fundamental flaw, however, in Polk's analysis is the underlying assumption that Byford merely reaffirmed a distinction between 'willfulness,' 'deliberation,' and 'premeditation.' It was based on that assumption that Polk concluded that the Kazalyn instruction was erroneous and that the instructional error violated the federal Constitution by omitting an element of the offense. That underlying assumption ignores our jurisprudence."
The Court, however, also recognized that portions its holdings in Garner and Byford were not correct: "Despite our disagreement with the assumption underlying the decision in Polk, we acknowledge that the change effected by Byford properly applied to that case as a matter of due process. The United States Supreme Court has indicated that for purposes of due process, the relevant consideration 'is not just whether the law changed' but also 'when the law changed.' Thus, if the law changed to narrow the scope of a criminal statute before a defendant's conviction became final, then due process requires that the change be applied to that defendant. In such cases, retroactivity is not at issue; rather, due process requires that the conviction be set aside if required by the change in the law. In this respect, our decision in Garner erroneously afforded Byford complete prospectivity because as a matter of due process, the change effected in Byford applies to convictions that were not yet final at the time of the change. Polk involved such a conviction. This case, however, does not. Because Nika's conviction was final when Byford was decided, whether the change effected in Byford applies to Nika is a matter of retroactivity analysis. This court previously has held that Byford has no retroactive application on collateral review. We reaffirm that decision today."
Sheriff v. Burcham - In a 4-3 decision, with a majority decision authored by Justice Gibbons, the Court reverses the grant of a pretrial petition for a writ of habeas corpus and dismissing a charge of driving and/or being in actual control of a vehicle while under the influence of alcohol and causing death and/or substantial bodily harm. The Court finds that the Cotter standard still applies for determining whether a defendant is "under the influence" despite a 1995 statutory change in NRS 484.3795. To find someone "under the influence," a fact-finder must determine that the driver was impaired "to a degree which renders him incapable of driving safely." The Court also concludes that expert testimony regarding retrograde extrapolation is not required for grand jury proceedings. Justices Cherry, Douglas and Saitta concurred in the Cotter standard analysis but dissented as to the Court's holding regarding expert testimony for retrograde extrapolation.
Nellis Motors v. State, DMV - evidentiary hearing standard for revoking emission-inspector licenses
Settelmeyer v. Smith & Harmer - attorney fees and receivership funds
In re Lerner - public reprimand issued against attorney for assisting in the authorized practice of law
Howell v. State Engineer - judicial review of State Engineer decisions regarding title to water rights
Valdez v. State - The facts of this capital case are highly unusual in that when the jury returned its verdict of guilt on the charge of first-degree murder, the foreperson announced that they had also reached a decision as to whether Valdez should receive the death penalty. In other words, the jury decided the penalty before the penalty hearing. The Nevada Supreme Court, in a 5-2 conviction reverses the judgment. The opinion is authored by Justice Hardesty. Justices Gibbons and Parraguirre dissented.
The Court first concludes that the district court (Judge Bonaventure) erred by failing to instruct the jury in writing, after the close of argument, that it was not to deliberate as to Valdez's possible penalty until after the sentencing hearing.
The Court next finds that the jury acted improperly by deliberating the penalty while deciding the issue of guilt and that the district court abused its discretion in denying a mistrial based upon this misconduct.
The Court next clarifies the proper harmless-error analysis for prosecutorial misconduct of constitutional and nonconstitutional dimenstion. The Court finds that the prosecutors engaged in several instances of misconduct throughout the trial and that this misconduct contributed to the cumulative error that warrants reversal of the judgment of conviction.
Disclosure - I am counsel for Valdez.
The Court issued a third opinion today, Boucher v. Shaw. It involves a certified question from the Ninth Circuit under NRAP 5 concerning whether under NRS 608 individual managers can be held liable as employers for unpaid wages.
In re: William M. & In re: Marques B. - these are consolidated appeals from juvenile court orders certifying the appellants for criminal proceedings as adults on charges involving the use of a firearm. The Court summarizes its holding:
" These appeals center on Nevada's presumptive certification statute, which consists of NRS 62B.390(2) and (3). These provisions create a rebuttable presumption that juveniles who are over 13 years of age and charged with certain enumerated offenses fall outside of the jurisdiction of the juvenile court and must therefore be transferred to the district court for adult criminal proceedings. In particular, we examine NRS 62B.390(3)(b)'s rebuttal requirements in light of the right against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution. Under NRS 62B.390(3)(b), to rebut the presumption of certification, the juvenile court must find clear and convincing evidence that the juvenile's criminal actions were substantially influenced by substance abuse or emotional or behavioral problems that may be appropriately treated within the jurisdiction of the juvenile court. Appellants argue that NRS 62B.390(3)(b) requires juveniles to admit to the charged, but unproven, criminal actions, which implicates the Fifth Amendment right against self-incrimination and the constitutionality of the presumptive certification provisions.
Thus in resolving these appeals, we initially determine whether the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings. We conclude that the Fifth Amendment right against self-incrimination is available to juveniles in certification proceedings under the United States Supreme Court's decision in In re Gault. Necessarily, we overrule that part of this court's decision in Marvin v. State that improperly concluded that the Fifth Amendment right against self-incrimination did not apply to juveniles in waiver proceedings.
Given the Fifth Amendment's applicability to juvenile certification proceedings, we next address whether NRS 62B.390(3)(b)'s rebuttal terms impinge on the right against self-incrimination by requiring the juvenile to either accede to the criminal court's jurisdiction despite having a substance abuse or emotional or behavioral problem, or to admit guilt, even though that admission could later be used against him in juvenile or adult court proceedings. We hold that, by requiring a juvenile to admit to the charged criminal conduct in order to overcome the presumption of adult certification, the presumptive certification statute, NRS 62B.390(2) and (3), violates the juvenile's Fifth Amendment right against self-incrimination."
Congratulations on the great victory to Kristina Wildeveld & Amicus ACLU of Nevada, National Juvenile Defender Center and Juvenile Law Center.
Yea!!
Olivares v. State - Olivares was convicted of first-degree murder with use of a deadly weapon. His counsel raised questions about his competency prior to trial, but the district court (Judge Bonaventure) refused to hold a hearing. The Court, sitting en banc, concludes that the district court abused its discretion and denied Olivares his rights to due process by failing to hold the hearing. The judgment is reversed and the case is remanded to the district court to conduct a competency hearing and a new trial in the event that Olivares is found competent to stand trial.
Congrats to Norm Reed and Nancy Lemcke of the Clark County Public Defender's Office.
State v. Harte - The Court, sitting en banc, affirms an order of a district court partially granting a post-conviction petition for a writ of habeas corpus in a death penalty case. The Court rejects the State's argument that McConnell v. State (felony murder cannot be used as the sole basis for liability for first degree murder and also used as an aggravating circumstance) was wrongly decided. The Court also rejects the State's argument that there should be a new trial, rather than just a new penalty hearing, in capital cases in which the sole aggravating circumstance is found invalid under McConnell. The majority opinion is authored by Justice Maupin and joined by Justices Gibbons, Douglas and Cherry. Justices Hardesy, Parraguirre and Saitta concur but express a belief that there are three fundamental flaws in McConnell's analytical framework.
Hernandez v. State - The Court, sitting en banc, affirms a district court order denying a post-conviction petition for a writ of habeas corpus in a capital case. In doing so, the Court declines to extend McConnell v. State to bar the dual use of torture as a theory of first-degree murder and as an aggravating circumstance to support a death sentence. The Court, however, finds the aggravating circumstance of burglary to be invalid under McConnell, reweighs the aggravating and mitigating evidence and affirms the death sentence. The Court rejects other post-conviction claims. Justice Cherry dissents in part after finding that the defendant should have received a new penalty hearing because the jury may have imposed a sentence of less than death without the invalid aggravating circumstance.
Cortinas v. State - The Court (Justices Hardesty, Parraguirre & Douglas) holds that traditional harmless-error review applies when a general verdict based on multiple theories of liability may rest on a legally invalid alternative theory. The Court also reaffirms its prior holdings that robbery is a general intent offense.
Rubio v. State - Counsel's affirmative misrepresentations of immigration consequences is an exception to the general rule that deportation is a collateral consequence that does not affect the voluntariness of a guilty plea. Misrepresentations by a court interpreter, however, are not an exception to the general rule. The Court also rules that the district court abused its discretion in failing to hold an evidentiary hearing on claims of ineffective assistance of counsel.
Opinions in civil cases:
Cook v. Sunrise Hospital & Medical Center -
Five Star Capital Crop. v. Ruby -
Estate of LoMastro v. American Family Ins. -
Village League v. State, Bd. of Equalization -
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